Delaware IP Law Blog

In two consolidated actions, Magistrate Judge Mary Pat Thynge recently issued a Memorandum Order construing the term “promotional code” in U.S. Patent Nos. 5,717,866, entitled “Method for comparative analysis of consumer response to product promotions,” and 5,924,078, entitled “Consumer-provided promotional code actuatable point-of-sale discounting system.” Codepro Innovations LLC v. Safeway Inc., C.A. No. 12-970-MPT and Codepro Innovations LLC v. The Stop & Shop Supermarket Company LLC, et al., C.A. No. 12-1482-MPT, at 1 (D. Del. May 14, 2013). The parties had requested early claim construction for this term. Id.

Judge Thynge construed this term as “a series of publicly distributed or advertised characters associated with discount information corresponding to a product or products.” Id. at 18.

Continue reading "Judge Thynge issues early claim construction order at request of parties " »

In Collarity, Inc. v. Google, Inc., C.A. No. 11-1103-MPT (D. Del. May 6, 2013), Magistrate Judge Mary Pat Thynge recently construed the following disputed claim terms of U.S. Patent No. 7,756,855, entitled “Search Phrase Refinement by Search Term Replacement:”

-“keyword,” id. at 4-8;

-“association graph,” id. at 8-10;

-“anchor keyword/non-anchor keyword,” id. at 10-12;

-“designating, by the search system, one or more keywords as anchor keywords and the remaining keywords as non-anchor keywords,” id. at 12-14;

-“order of steps,” id. at 14-19.

Continue reading "Judge Thynge construes claim terms of Internet search patent" »

Magistrate Judge Burke recently issued a thorough report and recommendation on claim construction in a patent infringement dispute between plaintiff Impulse Technology and defendants, Microsoft and the makers of several games for Microsoft’s Xbox 360 system and Kinect sensor. See Impulse Tech. Ltd. v. Microsoft Corp., C.A. No. 11-586-RGA-CJB, Report and Recommendation at 1-4 (D. Del. May 13, 2013). In addition to the parties’ agreed-upon constructions, Judge Burke construed the following disputed terms related to tracking the position of a player in physical and virtual spaces:

- “a tracking system”
- “defined physical space” and “first/second physical space”
- “virtual space”
- “player virtual location[s] in a virtual space corresponding to the physical location[s] of the player[s]”
- “positioning the representation of the user on the monitor” and “moving the representation of the user to reflect movement of the user”
- “representation”
- “overall physical location”
- “moving in the physical space”
- “[the view is from a] point of view in the virtual space corresponding to a location on a line directed outward from the display into the physical space”

Id. at 61-62.

Continue reading "Magistrate Judge Burke Construes Terms of Patents Asserted Against Microsoft Kinect" »

Judge Stark recently issued the Court's claim construction opinion construing the terms of U.S. Patent Nos. 7,846,207, 7,862,616, and 7,875,076. The patents relate to "medical devices called 'intervertebral implants' and methods of implanting such devices between adjacent vertebrae in spinal fusion procedures." Depuy Synthes Products, LLC v. Globus Medical, Inc., C.A. No. 11-652-LPS (D. Del. May 7, 2013).

Judge Stark construed the following terms:

"[front] plate/plate"

"securing plate"

"upper surface [of the plate]"

"lower surface [of the plate]"

"upper plane [of the body]"

"underside plane [of the body]"

"lower plane [of the body]"

"plate top surface located generally on the upper plane/plate top surface"

"plate lower surface located generally on the lower plane/plate lower surface"

"borehole"

"being anchorable within the first and second boreholes and the first and second partial boreholes"

"first and second boreholes of the front plate diverge when viewed from the front surface/ diverge"

"captured between the front plate and the securing plate"

"located between the plate and the securing plate"

"contained between the adjacent vertebral bodies when the implant is inserted between the adjacent vertebral bodies"

"positioned between the upper and lower planes"

"the first and second boreholes of the front plate and the first and second heads are covered at least partly by the securing plate I covered at least partly by the securing plate"

"the securing plate at least partially covering each of the plurality of boreholes/the securing plate at least partially covering"

"the securing mechanism at least partially covering each of the plurality of boreholes/the securing mechanism at least partially covering"

"attaching a securing plate with a fastening agent over the first and second head portions of the first and second fixation elements"

"partial borehole in communication with the front surface and the upperside/underside of the body"

"non-metallic material"

"the first height being substantially equal to the second height so that the three dimensional body and the plate are contained between the adjacent vertebral bodies when the implant is inserted between the adjacent vertebral bodies/the first height being substantially equal to the second height"

"the second height being generally equal to the first height"

"the first and second heads and the first and second boreholes and partial boreholes positioned substantially between the upper and underside planes/positioned substantially between the upper and underside planes"

"securing mechanism"

"fastening agent"

"upper surface"

"lower surface"

"upper side"

"underside"

"upper vertebra"

"lower vertebra"

"upper endplate"

"lower endplate"

Continue reading "Judge Stark construes terms of patents related to "intervertebral implant" devices" »

Judge Richard G. Andrews recently issued a claim construction opinion in Microsoft Corporation and Google, Inc. v. Geotag, Inc., C.A. No. 11-175-RGA (D. Del. May 3, 2013), in which plaintiffs filed a declaratory action asserting non-infringement of U.S. Patent No. 5,930,474, which “discloses computer software informational databases integrated with search engine technology that allow users to find points of interest according to desired geographic regions.” Id. at 2. The parties organized the disputed terms into five groups. Id. at 3.

The “hierarchy” phrases, id. at 3-10:
-“a database of information organized into a hierarchy of geographical areas wherein entries to each one of said geographical areas is further organized into topics”
-“narrower geographical area”
-“geographical area of relatively smaller expanse”
-“broader geographical area”
-“geographical area of relatively larger expanse”

The “dynamic replication” phrases, id. at 10-16:
-“dynamically replicating”
-“dynamically replicating an entry from broader geographical area into said geographical area.”
-“wherein within said hierarchy of geographical areas at least one of said entries associated with a broader geographical area is dynamically replicated into at least one narrower geographical area”
-“wherein at least one of said entries in said geographical area of relatively larger expanse is dynamically replicated into at least one of said geographical areas of smaller expanse”

“Topics” phrases, id. at 16-18:
-“topics”
-“wherein said topics are hierarchically organized”

“Entries” phrases, id. at 18-23:
-“entry” and “entries”

Finally, the Court construed nine additional terms and phrases, which, at plaintiffs’ urging, it construed according to their plain and ordinary meanings, id. at 23-25:
-“database”
-“on-line information”
-“organizer”
-“search engine”
-“virtual and geographic environment”
-“said search engine further configured to select one of said hierarchy of geographical areas prior to selection of a topic so as to provide a geographical search area”
-“said search engine further configured to select at least one geographical area in said hierarchy of geographical areas so as to define a geographical search area”
-“directing a search engine executing in a computer to select one or more of said geographical areas so as to select a geographical search area”

Continue reading "Judge Andrews construes claim terms of software patent" »

Judge Andrews recently construed the terms of U.S Patent No. 8,069,225 claiming "a transaction predictor aimed at speeding up the transmission of transactions over a network." Riverbed Technology, Inc. v. Silver Peak Systems, Inc., C.A. No. 11-484-RGA (D. Del. May 3, 2013). Terms of the other two patents-in-suit, U.S. Patent Nos. 7,428,573 and 7,849,134, were also at issue; but the Court postponed consideration of those patents because the patents were under reexamination by the PTO. Id. at 1 n.1.

The Court construed the following terms:

"a transaction predictor"
"synthesize, based on past transactions"
"based [at least in part] on past transactions"

Continue reading "Judge Andrews construes claims of patent aimed at speeding up transmissions over a network" »

Chief Judge Gregory M. Sleet recently issued a claim construction order in Edwards Lifesciences, L.L.C., et al. v. Medtronic CoreValve, L.L.C., et al., C.A. No. 12-cv-23-GMS (D. Del. Apr. 23, 2013). The Court construed the following disputed claim terms of U.S. Patent No. 8,002,825, entitled “Implantable Prosthetic Valve for Treating Aortic Stenosis”:

-“a prosthetic valve for implantation in a stenosed aortic valve”

-“metallic frame having intersecting bars”

-“frame made with intersecting metallic bars”

-“Frame”

-“18 French arterial introducer”

-“the frame being expandable”

-“a flexible valvular structure”

-“internal cover"

-“comprises a concave shape profile” and “shape comprising a concave profile”

-“wherein the frame is configured to be expanded by a balloon”

Continue reading "Judge Sleet construes claim terms for medical device patent" »

In Warner Chilcott Company, LLC v. Zydus Pharmaceuticals (USA) Inc., et al., C.A. No. 11-1105-RGA (D. Del. Apr. 22, 2013), Judge Richard G. Andrews construed the following disputed terms of U.S. Patent No. 6,893,662, which “relates to formulations and methods of delivering mesalamine to the lowest part of the gastrointestinal tract, especially the colon,” id. at 1:

-“Inner coating layer” and “outer coating layer,” id. at 3-4;

-“The inner coating layer is not the same as the outer coating layer,” id. at 5-7;

-“Selected from the group consisting of,” id. at 7-10;

-“Polymethacrylates” and “anionic polymethacrylates,” id. at 10-12;

-“Poly(methacrylic acid, methyl methacrylate) 1:2” and “poly(methacrylic acid,
methyl methacrylate) 1:1” id. at 12-14;

-“Enteric polymer,” id. at 14-15;

-“Mixtures,” id. at 15-17; and

-“The outer coating layer is applied after the inner coating layer but before the inner
coating layer is dried or cured,” id. at 17-18.

Continue reading "Judge Andrews construes claim terms in ANDA case" »

Chief Judge Gregory Sleet recently issued a claim construction order in a longstanding patent infringement dispute involving interactive program guides for digital satellite broadcasts. See Pegasus Dev. Corp. v. DirecTV, Inc., C.A. No. 00-1020-GMS, Order (D. Del. Apr. 1, 2013). Judge Sleet construed the following terms, several of which he found to be means-plus-function terms and several of which had been previously construed by the Federal Circuit:
- “embedded signals”
- “recording the receipt of and passing to said devices of said embedded signals”
- “decrypting [an encrypted information transmission]”
- “switch means”
- “matrix switch means”
- “a first processor means operatively connected to said plurality of detector means for identifying each detected control signal as having been detected by a particular detector”
- “a second processor means for controlling the output directing function of said switch means”
- “a second processor means for controlling the output function of said switch means”
- “a processor means for controlling the output functions of said matrix switch means and the transfer functions of said storage/transfer means”
- “a processor means for controlling the directing function of said matrix switch means and the transfer functions of said storage/transfer means”
- “storage/transfer means for receiving an storing said control signals and for transferring at least a portion of said control signals for further processing”
- “causing said memory means to transmit selected information of said selected data unit at a selected time”
- “causing a switch associated with said intermediate input means to connect the output of a player associated with said recorder to at least one selected processor at a selected time”
- “member information”
- “outputting data that include additional information besides said input information”
- “assembling output records that include additional information besides said input information”
- “reprogrammable system”
- “reprogram”
- “operating instructions”
- “said memory device”
- “different signals”
- “[selected] television program transmission”
- “locations”

UPDATED:
Chief Judge Sleet had previously ordered the parties to submit supplemental briefing regarding whether the controller and processor "constitute structure corresponding to the claim terms 'a second processor means for controlling the output directing function of said switch means' and 'a second processor means for controlling the output function of said switch means.'" Considering the parties' supplemental briefing and oral arguments at the Markman hearing, Judge Sleet found that the two terms should be construed as means-plus-function terms with corresponding structures of the "signal processor" and the "cable program controller & computer." Judge Sleet also refused to alter his previous claim construction to include a "controller" or "processor," finding that they were sub-parts of the signal processor, and that there was "no need for the court to call out individual components of that processor or recognize it by alternative names." See Pegasus Dev. Corp. v. DirecTV, Inc., C.A. No. 00-1020-GMS, Supplemental Order at 1-2 (D. Del. Apr. 15, 2013)

UPDATED:
Chief Judge Sleet granted in part plaintiffs' motion for reargument regarding Judge Sleet's claim construction order. Judge Sleet amended the Court's construction of the term "decrypting [an encrypted information transmission]" to mean "using a digital key in conjunction with a set of associated mathematical operations to decipher digital data. This term does not include mere descrambling of an analog television transmission. The decrypting must be of the entire information transmission that is recited in step (b) of claim 14." See Pegasus Dev. Corp. v. DirecTV, Inc., C.A. No. 00-1020-GMS, Order at 1 (D. Del. May. 15, 2013)

Continue reading "Chief Judge Sleet Construes Terms of Satellite Television Patents" »

In a recent Memorandum Opinion, Judge Sue L. Robinson construed several claim terms, denied both parties’ motions for summary judgment, and denied plaintiff’s motion to exclude defendant’s expert’s testimony on invalidity. Cellectis S.A. v. Precision Biosciences, Inc., et al., C.A. No. 11-173-SLR (D. Del. Apr. 9, 2013).

The Court first construed the following terms:

-“[M]onomer of an 1-Crel meganuclease variant comprising at least one mutation in the amino acid sequence of SEQ ID NO: 70, wherein said at least one mutation comprises a substitution at one or more of the amino acids residues at positions 44, 68 and 70 and said monomer further comprises at least one additional mutation of an amino acid residue directly contacting a DNA target sequence wherein said amino acid residue directly contacting a DNA target sequence is selected from the group consisting of positions 26, 28, 30, 32,33 and 38 modified DNA cleavage specificity relative to the 1-Crel meganuclease of SEQ ID NO: 70 in at least one nucleotide in the +/- 3 to 5 triplets.” Id. at 4. The Court “decline[d] to construe the first phrase of [this independent claim] without the context of the remainder of the claim. Id.

-“[M]odified DNA cleavage specificity relative to the 1-Crel meganuclease of SEQ ID NO: 70 in at least one nucleotide in the +/- 3 to 5 triplets.” Id. at 7.

-“A single-chain chimeric meganuclease comprising [a] fusion of [two monomers].” Id. at 7-8.

-“[V]ariant of the wild-type monomer from 1-Crel.” Id. at 8-9.

The Court then denied the parties’ motions for summary judgment as to literal infringement and as to no invalidity for anticipation. The parties’ experts disputed the “proper characterization of [defendant’s product]” and thus raised genuine issues of material fact as to literal infringement. Id. at 16. The Court also held that there was a genuine issue of material fact as to whether a piece of prior art “expressly disclose[d] all of the claim limitations and whether the specific substitutions [of the patent-in-suit] would be apparent to one of skill in the art.” Id. at 19.

Finally, the Court denied plaintiff’s Daubert motion to exclude defendant’s expert testimony on best mode and obviousness. Plaintiff argued that the expert’s opinions on best mode made improper inferences based on a limited amount of information, but the Court held that the opinions were “not unreliable or unhelpful, when measured by the relatively low standard at this stage of the proceedings, coupled with the highly subjective nature of the state of mind inquiry” involved in best mode analysis. Id. at 21. As to obviousness, plaintiff argued that the expert’s testimony, which included “his opinions on secondary considerations and motivation to combine and claim charts illustrating his findings,” was too conclusory, but the Court concluded that "[w]hile [plaintiff] may disagree with [this expert’s] analysis and conclusions . . . at most, this goes to the weight of the evidence, which is properly addressed via cross-examination.” Id. at 22.

Continue reading "Judge Robinson construes claims, denies motions for summary judgment on infringement and invalidity, and denies plaintiff’s Daubert motion" »